PEOPLE v. JACKSON

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Andrew JACKSON, appellant.

Decided: February 24, 2009

STEVEN W. FISHER, J.P., MARK C. DILLON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ. Lynn W.L. Fahey, New York, N.Y. (Benjamin D. Gold of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Adam P. Wolf of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered April 3, 2006, convicting him of aggravated criminal contempt, criminal contempt in the first degree (three counts), and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, he knowingly, voluntarily, and intelligently waived his right to be present during sidebar questioning of prospective jurors (see People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95).   The defendant, defense counsel, and the court signed a valid written waiver (see People v. Velasquez, 1 N.Y.3d 44, 49, 769 N.Y.S.2d 156, 801 N.E.2d 376;  People v. Smith, 253 A.D.2d 470, 471, 675 N.Y.S.2d 905), and the defendant did not object to being absent during sidebar conferences (see People v. People, 223 A.D.2d 732, 732-733, 637 N.Y.S.2d 204).

 The defendant contends that the court erred in denying his challenge for cause to a prospective juror who failed to provide unequivocal assurance that he could be fair and impartial.   Since the defendant failed to exercise an available peremptory challenge against the prospective juror after the court denied his challenge for cause, any claim as to that juror is deemed waived (see CPL 270.20[2];  People v. Foster, 64 N.Y.2d 1144, 1146, 490 N.Y.S.2d 726, 480 N.E.2d 340;  People v. Pagan, 191 A.D.2d 651, 595 N.Y.S.2d 486).

 Moreover, contrary to the defendant's contention, defense counsel's failure to exercise a peremptory challenge against that prospective juror after the court denied his challenge for cause did not constitute ineffective assistance of counsel (see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213).   Viewed in totality, the record reveals that the attorney provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).

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